I go to trial Tuesday where one person present (and who owned and was driving the vehicle) will be testifying against the passenger who is charged with possession of a firearm (handgun)that was concealed under the dash on the passenger side. My position is that because each person would have to be independently linked to the contraband, the driver is not an accomplice witness. There should be no evidence that the driver aided or abetted (except unknowingly, by carrying both the passenger and the gun around). Even though both occupants were convicted felons, I also say they are not guilty of the same offense. Anyone dealt with a similar problem, or had similar arguments either work or not? There are possession cases that treat both parties as accomplices, but I can't find one that says my argument is right or wrong. I realize that co-principals, say two persons shooting at another at the same time, can be accomplice witnesses, but it seems to me that in a joint possession case, one person cannot lessen his own culpability by falsely accusing the other of being in possession. Especially if there is no direct evidence that the driver knew of the gun, isn't the court necessarily commenting on the weight of her testimony if it gives a 38.14 instruction?

Do you have any other facts that link the passenger to the gun besides the fact that the driver says it was his and it's on his side of the car? Ownership? Previous possession? Admission by him? What is the parties relationship? What are their previous convictions for?

It seems unlikely to me that a passenger could get in MY car with a gun and hide it under the dash without my knowledge. And if I was a convicted felon I would probably know my fellow felons propensity for carrying a gun around, wouldn't you think? And if it's her boyfriend....

The whole thing makes me suspicious. I would rather have the court give an accomplice witness charge (unless I had no cooboration, in which case I wouldn't be trying this case).

When you say hidden under the dash, do you mean in the glove box or on the floor board?

Jana, other than the circumstances described probably no other corroboration, thus you can see the necessity for corroboration was a critical point. If jury believed the driver--I think case would stand up on appeal, unless she was an accomplice witness, in which case it was indeed what we call a "non-starter". The defendant had orally acknowledged knowledge of the gun to the police after it had been located (based on info obtained from the driver), but that was probably not admissible due to 38.22 sec. 3 and for another reason. Judge was leaning toward not giving the instruction. Defendant (who also had another pending charge) determined to plead guilty at last moment. So, the problem got solved, but still I wonder what the correct answer is to the question. By the way, driver said that she learned of the presence of the gun only after the two of them had been arrested and defendant told her about it. Suspicious?, sure; plausible?? Unrebutted, does that testimony raise issue of driver as an accomplice?

Glad you got a plea out of that one. I don't think it is the driver's testimony that raises the issue of whether she is an accomplice but the fact that she, too, is a felon with a gun in her car. Knowledge would be a fact issue so I think I would have had to come down on the side of the instruction being required.

I tried to think of some way to get his admission in for the limited purpose of cooroborating her story, but couldn't.

And I'm probably particularly sensitive about accomplice witness corroboration having just received the mandate of reversal after PDR was denied in a case where our court of appeals disagreed with me, my court partner, my judge, and 12 jurors that the defendant's letters and attempts to get the codefendant to sabotage our case against him were sufficient corroboration! (and threw out the 99 year sentence for aggravated robbery and EOCA) Whew. Sounds bitter.

By the way, what's a "non-starter"?

John informed me a while back that you guys don't have to deal with arcane issues in burglary cases since you have no burglaries. Now you tell me Williamson County has no non-starters either? Must be nice. My definition: a case that tells the prosecutor and the police the guy is guilty as can be, but which will never get to first base in the courtroom.